chapter28.txt

CHAPTER XXVIII







THE BLACK FLAG







THROUGHOUT the forty-odd years of his creative



life, Edison has realized by costly experience



the truth of the cynical proverb that "A patent



is merely a title to a lawsuit." It is not intended,



however, by this statement to lead to any inference



on the part of the reader that HE stands peculiarly



alone in any such experience, for it has been and



still is the common lot of every successful inventor,



sooner or later.







To attribute dishonesty or cupidity as the root of



the defence in all patent litigation would be aiming



very wide of the mark, for in no class of suits that



come before the courts are there any that present a



greater variety of complex, finely shaded questions,



or that require more delicacy of interpretation, than



those that involve the construction of patents, particularly



those relating to electrical devices. Indeed,



a careful study of legal procedure of this character



could not be carried far without discovery of the fact



that in numerous instances the differences of opinion



between litigants were marked by the utmost bona



fides.







On the other hand, such study would reveal many



cases of undoubted fraudulent intent, as well as many



bold attempts to deprive the inventor of the fruits



of his endeavors by those who have sought to evade,



through subtle technicalities of the law, the penalty



justly due them for trickery, evasion, or open contempt



of the rights of others.







In the history of science and of the arts to which



the world has owed its continued progress from year



to year there is disclosed one remarkable fact, and that



is, that whenever any important discovery or invention



has been made and announced by one man, it has



almost always been disclosed later that other men



--possibly widely separated and knowing nothing of



the other's work--have been following up the same



general lines of investigation, independently, with the



same object in mind. Their respective methods might



be dissimilar while tending to the same end, but it



does not necessarily follow that any one of these



other experimenters might ever have achieved the result



aimed at, although, after the proclamation of



success by one, it is easy to believe that each of the



other independent investigators might readily persuade



himself that he would ultimately have reached



the goal in just that same way.







This peculiar coincidence of simultaneous but



separate work not only comes to light on the bringing



out of great and important discoveries or inventions,



but becomes more apparent if a new art is disclosed,



for then the imagination of previous experimenters



is stimulated through wide dissemination of the tidings,



sometimes resulting in more or less effort to



enter the newly opened field with devices or methods



that resemble closely the original and fundamental



ones in principle and application. In this and other



ways there arises constantly in the United States



Patent Office a large number of contested cases,



called "Interferences," where applications for patents



covering the invention of a similar device have been



independently filed by two or even more persons.



In such cases only one patent can be issued, and that



to the inventor who on the taking of testimony shows



priority in date of invention.[20]











[20] A most remarkable instance of contemporaneous invention



and without a parallel in the annals of the United States Patent



Office, occurred when, on the same day, February 15, 1876, two



separate descriptions were filed in that office, one a complete



application and the other a caveat, but each covering an invention



for "transmitting vocal sounds telegraphically." The application



was made by Alexander Graham Bell, of Salem, Massachusetts,



and the caveat by Elisha Gray, of Chicago, Illinois. On



examination of the two papers it was found that both of them



covered practically the same ground, hence, as only one patent



could be granted, it became necessary to ascertain the precise



hour at which the documents were respectively filed, and put the



parties in interference. This was done, with the result that the



patent was ultimately awarded to Bell.















In the opening up and development of any new art



based upon a fundamental discovery or invention,



there ensues naturally an era of supplemental or



collateral inventive activity--the legitimate outcome



of the basic original ideas. Part of this development



may be due to the inventive skill and knowledge of



the original inventor and his associates, who, by reason



of prior investigation, would be in better position



to follow up the art in its earliest details than others,



who might be regarded as mere outsiders. Thus a



new enterprise may be presented before the world



by its promoters in the belief that they are strongly



fortified by patent rights which will protect them in



a degree commensurate with the risks they have



assumed.







Supplemental inventions, however, in any art, new



or old, are not limited to those which emanate from



the original workers, for the ingenuity of man, influenced



by the spirit of the times, seizes upon any



novel line of action and seeks to improve or enlarge



upon it, or, at any rate, to produce more or less variation



of its phases. Consequently, there is a constant



endeavor on the part of a countless host of men possessing



some degree of technical skill and inventive



ability, to win fame and money by entering into



the already opened fields of endeavor with devices



and methods of their own, for which subsidiary



patents may be obtainable. Some of such patents



may prove to be valuable, while it is quite certain



that in the natural order of things others will be



commercially worthless, but none may be entirely



disregarded in the history and development of the



art.







It will be quite obvious, therefore, that the advent



of any useful invention or discovery, great or small,



is followed by a clashing of many interests which become



complex in their interpretation by reason of



the many conflicting claims that cluster around the



main principle. Nor is the confusion less confounded



through efforts made on the part of dishonest persons,



who, like vultures, follow closely on the trail



of successful inventors and (sometimes through



information derived by underhand methods) obtain



patents on alleged inventions, closely approximating



the real ones, solely for the purpose of harassing the



original patentee until they are bought up, or else,



with the intent of competing boldly in the new business,



trust in the delays of legal proceedings to obtain



a sure foothold in their questionable enterprise.







Then again there are still others who, having no



patent rights, but waving aside all compunction and



in downright fraud, simply enter the commercial field



against the whole world, using ruthlessly whatever



inventive skill and knowledge the original patentee



may have disclosed, and trusting to the power of



money, rapid movement, and mendacious advertising



to build up a business which shall presently assume



such formidable proportions as to force a compromise,



or stave off an injunction until the patent



has expired. In nine cases out of ten such a course



can be followed with relative impunity; and guided



by skilful experts who may suggest really trivial



changes here and there over the patented structure,



and with the aid of keen and able counsel, hardly a



patent exists that could not be invaded by such infringers.



Such is the condition of our laws and practice



that the patentee in seeking to enforce his rights



labors under a terrible handicap.







And, finally, in this recital of perplexing conditions



confronting the inventor, there must not be forgotten



the commercial "shark," whose predatory instincts



are ever keenly alert for tender victims. In the wake



of every newly developed art of world-wide importance



there is sure to follow a number of unscrupulous



adventurers, who hasten to take advantage of general



public ignorance of the true inwardness of affairs.



Basing their operations on this lack of knowledge,



and upon the tendency of human nature to give



credence to widely advertised and high-sounding descriptions



and specious promises of vast profits, these



men find little difficulty in conjuring money out of



the pockets of the unsophisticated and gullible, who



rush to become stockholders in concerns that have



"airy nothings" for a foundation, and that collapse



quickly when the bubble is pricked.[21]











[21] A notable instance of the fleecing of unsuspecting and credulous



persons occurred in the early eighties, during the furor



occasioned by the introduction of Mr. Edison's electric-light system.



A corporation claiming to have a self-generating dynamo



(practically perpetual motion) advertised its preposterous claims



extensively, and actually succeeded in selling a large amount of



stock, which, of course, proved to be absolutely worthless.















To one who is unacquainted with the trying circumstances



attending the introduction and marketing of



patented devices, it might seem unnecessary th...